October 22, 2002

Bending
Posse Comitatus Brings Bad Results

Perhaps
I should not have been surprised, but I was at least somewhat appalled
that with the wall-to-wall coverage the issue received almost no
attention. But the use of a military surveillance plane to try to
capture the notorious Beltway murderer raises serious questions
about the already-tattered separation between military activity
and domestic civilian law enforcement. Most news reports, however,
focused on the technical capabilities of the airplane, and the news
readers could barely contain their excitement that this marvelous
tool was being wielded on their behalf.

To
some extent, I can understand that attitude. I used to live in the
area, and most of the locations are familiar to me. I have an idea
just how concerned I would be if I were still living there, especially
with school-age children. The news and media establishment is concentrated
in the Imperial City, and many of the news people have kids in school,
buy gas and go shopping at Home Depot. Indeed, this personal investment
in the story has produced the occasional insight as to just how
devastating the impact of the killer has been on the region.

But
journalists are supposed to be able to cultivate a certain distance
between themselves and the stories they cover. I certainly hope
the authorities capture the Beltway killer soon. I even hope that
perhaps the DeHavilland DHC-7 military airborne reconnaissance plane
is helpful in the pursuit. Even if it does help, however, troubling
questions about the use of military equipment and personnel in domestic
law enforcement activities deserve to be considered and answered.

BREACHING
THE LINE

This
occasion should not serve as a precedent to further breach the important
line between the military and law enforcement, which serves to safeguard
both American liberties and the ability of the military to perform
its primary mission: fighting wars.

To
be sure, news reports say the help will be provided in a way that
complies with the 1878 Posse Comitatus Act, which bans the military
from domestic law enforcement. Officials say the data from the surveillance
plane, said to be able to detect flashes of gunfire, will be furnished
directly to law enforcement officials, and civilian law enforcement
rather than the military will choose the targets to watch. Well.
Perhaps it's reassuring that authorities are still aware of the
Posse Comitatus Act. But pardon me if I'm concerned that the awareness
leads to complying with the law in letter rather than in spirit
 or even of using loopholes to move "beyond" the spirit
of the law. The 1878 law does contain provisions for emergency use
of military in certain circumstances, but it really meant to keep
the functions separated in all but the most extreme of circumstances.
I'm not sure this one qualifies. And if nobody complains, this small
breach in a highly-publicized case could be viewed as normal rather
than an exception.

OMINOUS
PRECEDENTS

The
danger of a larger breach in the wall that separates the military
from civilian law enforcement is very real. A small  well, actually
not so small  but significant breach already exists in a provision
approved in the 1980s for the military to lend support in drug-law
enforcement, making the War on Drugs something more than a mere
metaphor. It was the allegation of drug law violations (later shown
to be unfounded and probably at the time known to be unfounded)
that permitted the military to assist in the initial BATF assault
on the Branch Davidian compound near Waco. This breach has also
been a contributing factor (although not the only one) in the ongoing
militarization of civilian law enforcement. When you see photos
of cops making some kind of a raid, like the recent raid on a medical
marijuana cooperative in Santa Cruz, California, they're all dolled
up in military-style garb, with scary-looking weapons, in a fashion
that would have made real soldiers in previous wars (as recently
as Vietnam and maybe even Desert Storm) feel underdressed.

In
July homeland security honcho Tom Ridge raised quite seriously the
possibility of repealing the Posse Comitatus Act as one step in
fighting the war on terrorism. Other officials and dignitaries have
suggested revisions in the act to permit more open cooperation between
civilian and military authorities.

That
would be a mistake.

MORE
THAN ABSTRACT

To
many this concern may seem abstract and theoretical. Who really
worries about a military takeover in the United States? As John
Eastman, a law professor at Chapman University who clerked for Justice
Thomas and is affiliated with the conservative Claremont Institute,
explained to me last week, however, "One reason we've been
able to have a standing army that has not assumed power or seriously
threatened our freedom is because we have maintained the civilian/military
distinction. The prospect for Caesarism becomes much more serious
when we breach those lines."

Other
conservatives are also concerned. In previous columns I have had
occasion to disagree with or criticize Mackubin Thomas Owens, professor
of strategy at the Naval War College. But there
he was, in the August 1 edition of National Review Online
explaining the importance of the Posse Comitatus law  as much
for the military as for civilians and for American freedoms.

As
Owens wrote, "posse comitatus" is a Latin term meaning
"the power of the county," classically understood to be
the people at large as the constabulary. In medieval days the "shire-reeve"
or sheriff, would call out the "posse comitatus," and
every able-bodied man was expected to assist in the search for a
criminal, or to help put down some disorder. That's the origin of
the sheriff calling together posses in all those old westerns. The
Posse Comitatus act was passed after the election of 1876, during
which soldiers guarded some polling places and some suspected that
they intimidated voters. Most officers welcomed the law. Having
been used for constabulary purposes on the frontier, army people
had come to understand that it detracted from the army's ability
to be an effective, professional war-fighting force against foreign
powers.

DIFFERENT
MISSIONS

War
fighting and law enforcement are different missions requiring different
skills, tactics and attitudes. "Employing the U.S. military
as a domestic police force is a recipe for disaster," Mackubin
Owens wrote, that would weaken it as a fighting force.

Of
course, the trend of late has been to use the military as a constabulary
in foreign countries the U.S. has decided to occupy  for the constructive
purpose of "nation-building," of course. That use has
also led to some deterioration of the war-fighting capacity of the
American military, and to some confusion about mission among those
who serve, although it might be impossible to know exactly how much
damage has been done until the U.S. gets involved in a real ground-based
conflict in which the mission is something other than the avoidance
of U.S. casualties.

Using
a surveillance plane to catch a killer is not a huge breach. But
it's a potentially dangerous move that should not serve as a precedent
for future
blurring of the line.

CONTEMPLATING
KOREAN NUKES

On
North Korea and nukes, I have just a few preliminary thoughts. The
announcement by the Bush administration that the regime in North
Korea has a nuclear weapons development program and may even have
nuclear weapons is, to say the least, a complicating factor, especially
when we're thinking about Iraq so heavily. Whether North Korea is
a genuine threat to the United States, or even to its all too farflung
and ill-defined "interests" is dubious, but it is unquestionably
a troubling development. The U.S. suspicion, expressed by officials
in interviews Thursday, that it was Pakistan that supplied critical
equipment for North Korea's clandestine nuclear program, is a further
complication. Since last Sept. 11 the United States has regarded
Pakistan as a key ally in the purported war on terrorism. (Gen.
Pervez Musharraf, Pakistan's president, has denied that Pakistan
is supplying such equipment, though he was vague about whether it
had in 1997-98, before he took power in a military coup, as U.S.
intelligence experts allege.)

What
is to be done, if anything? The administration has so far taken
a cautious and diplomatic approach, which is probably appropriate
given the short time  two weeks  it has had the information and
the need to consult with South Korea, China and Japan, which are
more directly affected. But it faces choices that could make its
policies toward various threats look contradictory.

The
United States will come under increasing pressure to formally revoke
a 1994 "Agreed Framework" with North Korea negotiated
by the Clinton administration, under which the U.S. agreed to supply
fuel oil and "peaceful" nuclear knowledge in exchange
for a promise to discontinue weapons development. Given the fact
that North Korean officials, who were said to be belligerent in
confirming U.S. intelligence information, have already declared
the agreement nullified, the point may be moot.

COMPARE
AND CONTRAST

Questions
arise when this relatively soft stance is compared to the hard line
the administration has taken toward Iraq.

National
security adviser Condoleezza Rice, while agreeing that "no
one wants to see a nuclear-armed North Korea," argued on "Nightline"
that diplomatic methods might suffice with North Korea, but "Saddam
Hussein is in a category all by himself, as still the only leader
to have actually used a weapon of mass destruction, against his
neighbors." That doesn't quite resolve the matter. First, there
are differences within the artificial category of "weapons
of mass destruction." Nuclear weapons are much more deadly
than chemical or biological weapons. And Saddam used poison gas
back in the late 1980s, when he was fighting Iran and the United
States tacitly backed him. He hasn't since, even in the 1991 Persian
Gulf War.

An
argument could be made, then, that a nuclear-armed North Korea is
actually more of a threat than Iraq, and if diplomatic methods are
appropriate for North Korea, perhaps they would be for Iraq. Others
argue that confirmation of nukes in North Korea makes it all the
more important to take out Saddam before he gets nukes.

Just
to complicate matters, Joel Witt, a former State Dept. analyst,
told the Toronto Globe and Mail that Pyongyang's nuclear
bluster may be "an attention-getting gesture," designed
more to bring on food aid in a country failing economically than
to signal an imminent use of force. For starters, it's worthwhile
to remind North Korea that one of the reasons it is an economic
basket-case is that it is a centrally planned dictatorship that
systematically diverts resources from civilian needs to military
programs. Beyond that, it is probably prudent to wait until more
is known before rushing to a policy  Iraq-style or otherwise.